Waking up from uneasy dreams: professional context, discretionary judgment, and The Practice of Justice.

• Author: Rostain, Tanina
• Position: Review Essay Symposium: The Practice of Justice by William H. Simon

When an associate at a large corporate firm was interviewed several years ago about potential conflicts between his personal values and his work assignments, he chuckled at the quaintness of the inquiry. "Are you kidding?" he responded, "My work doesn't raise questions of conscience, it's just a fight over which big corporation is going to get a bigger chunk of the pie."(1) By all reports, this associate's experience is typical. According to common lore, personal ethics, considerations of justice, and other ideals are far removed from the daily concerns of lawyering. Under the accepted understanding of the role of lawyers, their fundamental commitment is to advancing clients' interests. In this view, broader normative commitments have no place in practice.

To William Simon, the radical disconnect between broader professional ideals and lawyers' work is a sign that something is very wrong with the practice of law. As he notes, although lawyers devote their lives to working within the system of justice, they are routinely implicated in injustice. This contradiction, Simon argues, is experienced by lawyers as profoundly alienating. With The Practice of Justice,(2) Simon offers a diagnosis of lawyers' professional estrangement and an antidote. Simon locates the roots of lawyers' malaise in the dominant categorical norms of the profession, which hold that a lawyer's fundamental allegiance is to her clients and leave no room for complex contextualized decisionmaking. The cure for lawyers' alienation, according to Simon, is to replace the categorical mandates of legal ethics with a discretionary approach centered on considerations of justice. Just as judges make reasoned discretionary judgments in deciding cases, he proposes, so lawyers should adopt a similar type of analysis when confronted with ethical quandaries. In exercising discretionary judgment, moreover, a lawyer should not focus on what action will advance her client's interests, but what action is likely to lead to a just resolution.

In his trenchant analysis, Simon undoubtedly identifies and dissects the core weaknesses in the current conception of law practice. Because his site of ethical inquiry is too limited, however, his remedy may prove ineffective. The problem, put simply, is that the site of ethical inquiry he identifies is too circumscribed. Throughout The Practice of Justice, Simon focuses on the decisionmaking process of a single lawyer faced with an individual ethical problem in an isolated case. In limiting himself to individual dilemmas, Simon neglects the role that social and organizational factors play in shaping lawyers' judgments.

The discretionary approach advanced by Simon presupposes that lawyers have an independent perspective on what justice requires in any given circumstance. Sociolegal research, which suggests that professional context plays a significant role in shaping lawyers' attitudes and values, puts this central assumption in doubt. Law practice is enmeshed in a web of social relations that affect how lawyers perceive the problems they confront. Lawyers' perceptions of law are shaped by their dealings with their clients, the lawyers with whom they work, and other actors in the legal system. If, consistent with Simon's ambition, ideals of justice are meaningfully to inform lawyers' daily practices, then these varied professional relations and interactions must be taken into account.(3)

Once the frame of inquiry is broadened to consider the social and organizational determinants of lawyers' views, then different questions become relevant in legal ethics. On a systemic level, it becomes imperative to understand the socialization forces at work in different professional contexts--an inquiry that legal ethics scholars have only recently begun to undertake. On an individual level, a lawyer's clients, her professional associates, what kind of practice specialty she pursues, and a host of related questions are issues that turn out to have ethical implications beyond the immediate circumstances. Over time, a lawyer's choices about whom she represents, with whom, and in what context bear importantly on her capacity to recognize in concrete situations when the dictates of justice pull in a different direction than her clients' interests.

The moral of sociolegal studies of practice is that law practice transforms lawyers' ethical sights. The associate quoted above characterizes his job as "a fight over which big corporation is going to get a bigger chunk of the pie" because all he and the lawyers at his firm do, day in and day out, is represent corporations who are fighting over pieces of the pie. Simon is certainly right that some part of lawyers' alienation can be attributed to the governing norms of practice. Some of the roots of the legal profession's malaise, nevertheless, need to be traced to lawyers' estrangement from their professional selves. Developing an account of the concrete conditions of practice is a prerequisite to addressing this self-estrangement. Without such an account, justice is likely to remain a remote theoretical concern for lawyers with no salience for their daily professional lives.

1. SIMON'S DISCRETIONARY APPROACH

   "No social role encourages such ambitious moral aspirations as the lawyer's, and no social role so consistently disappoints the aspirations it encourages" Simon observes in the opening words of The Practice of Justice.(4) Despite their intimate involvement with the system of justice, lawyers are regularly required to engage in unjust actions. Under the governing rules of ethics, for example, a lawyer must keep a client's confidences even when disclosure would prevent significant harm to others. In litigation, a lawyer is required to engage in aggressive trial tactics to further a client's interests even if the outcome is inconsistent with the underlying merits of the case. In counseling, a lawyer is expected to give advice benefiting a client even if such advice effectively eviscerates the regulatory regime at issue. These contradictions give rise to profound alienation among lawyers, who daily experience the disjuncture between their role and the ends of the legal system.

   As Simon argues, the source of this alienation lies in the categorical ethical norms around which the practice of law is organized. Under the prevailing account, enunciated in bar codes, decisional law, and standard legal ethics discourse, lawyers' ethics involve the mechanical application of rules and leave no room for complex discretionary judgment. In substance, moreover, the governing norms of practice pay little or no attention to ideals of justice. Under the "Dominant View," as Simon calls it, a lawyer may--indeed must--pursue any goal of a client, through any arguably legal means.(5) In their single-minded dedication to furthering client interests, lawyers are expected to relinquish any responsibility for the harmful effects of their conduct on others.

   Simon devotes the early chapters of The Practice of Justice to a devastating critique of the arguments traditionally marshaled to support the Dominant View.(6) As Simon shows, these arguments are built on questionable premises and are riddled with internal inconsistencies. Simon groups these claims into two categories: claims that clients are entitled to lawyers' zealous partisanship as a matter of right and claims that zealous partisanship results in justice in the long run. Simon demonstrates that the argument that clients are entitled to lawyers' unrestrained zeal is premised on libertarian and positivist assumptions that do not amount to a defensible theory of law.(7) Simon also takes apart the consequentialist arguments offered for the Dominant View, which maintain that despite all its short-term unjust effects, unmitigated partisanship leads to greater justice overall.(8) As he points out, such arguments rely on unverifiable and implausible empirical assumptions about human conduct. The factually and logically tenuous presuppositions of the consequentialist thesis are inadequate to justify the injustices that flow from lawyers' compliance with the Dominant View.

   Having made short shrift of the arguments underlying the Dominant View, Simon turns to the difficult challenge of describing an alternative vision of legal ethics. With his account of contextual judgment, Simon hopes not only to avoid the weaknesses that beset the Dominant View, but also, and perhaps more importantly, to offer an approach that speaks to the legal profession's alienated circumstances. Put simply, lawyers are alienated from their work because it affords them neither an opportunity for creative expression nor for meaningful social participation.(9) As Simon argues, the remedy is to put complex discretionary judgments based on considerations of justice at the center of legal ethics and practice.

   Pursuing this logic, Simon proposes that lawyers adopt a style of reasoning to address ethical dilemmas fashioned after judicial decisionmaking processes. Just as judges make reasoned discretionary judgments to further justice, so should lawyers engage in contextual reasoning to decide what actions they should take to promote justice,(10) As Simon emphasizes, the contextual approach does not anticipate that lawyers will arrive at the same decisions as would judges. As often as not, lawyers are not well situated to resolve the merits of a matter, in which case they should defer to established decisional procedures. "Justice is often served," he observes, "by a differentiation of function in which occupants of different roles assume responsibilities for different aspects of a situation."(11)

   In invoking an analogy to judicial reasoning, Simon anticipates and answers an expected objection to his approach, which argues that discretionary decisionmaking by lawyers will result in ad hoc results. Simon responds that even though law is indeterminate, we nevertheless look to courts to make...